To Merge or Not To Merge: That Is the Question

Ryan Samstag, Esq.

Los Angeles, California

The year was 1968. America was in crisis. The Vietnam War had turned into a quagmire, political unrest was growing, and the statute of limitations on specific injuries was being eroded in the California workers’ compensation system. In response—at least to that last item—the California Legislature passed a series of amendments to the Labor Code that established the anti-merger doctrine. These changes would have far-reaching effects on issues of dates of injury, apportionment, and liability between carriers.

Although the legislation is over 50 years old, or perhaps because it is 50 years old, practitioners, physicians, and even judges frequently ignore it. The problem often arises when an injured worker files an application for a continuous trauma claim but testifies to a specific injury or multiple specific injuries during the course of employment. It is all too common for the parties to fail to fully develop that testimony or for a physician to simply find one long, continuous trauma injury and punt on the issue of apportioning liability to the various specific injuries. This article is intended to help the practitioner understand the law and issues surrounding merger and anti-merger so they can effectively represent their clients and properly determine liability between potential defendants.